The Daily

High Court Upholds Affirmative Action at UT-Austin

The U.S. Supreme Court on Thursday upheld affirmative action in a legal challenge to admissions procedures at University of Texas meant to boost diversity in the classroom.

This was the second time Abigail Fisher’s case has gone before the Supremes. Fisher, a white student, sued the school after she was denied admission in 2008, claiming the UT-Austin's affirmative action process is what kept her out.

As some investigative journalists at ProPublica have pointed out, mediocre grades probably had more to do with UT denying Fisher admission than any race-based selection process. Nevertheless, the conservative Project on Fair Representation footed the bill for the years-long legal challenge, with the larger goal of striking down affirmative action policies at American universities.

In essence, Fisher v. Texas was about whether UT’s top 10 percent admissions process – in which students at the top of each high school in the state are guaranteed admission – goes far enough in addressing diversity on the school’s campus. Justice Anthony Kennedy, who wrote the four-justice majority opinion that essentially upholds affirmative action policies (at least for now), agreed with the university in saying that the Top Ten Rule doesn't go far enough in creating diversity:

“A system that selected every student through class rank alone would exclude the star athlete or musician whose grades suffered because of daily practices and training. It would exclude a talented young biologist who struggled to maintain above-average grades in humanities classes. And it would exclude a student whose freshman-year grades were poor because of a family crisis but who got herself back on track in her last three years of school.”

While it’s unclear how far the narrow ruling might matter in future legal challenges over race-based admissions policies, the court has set out some ground rules for evaluating affirmative action programs, including that colleges give a “reasoned, principled explanation” for why they’re trying to boost diversity on campus. At present time, UT’s program meets those standards, Kennedy wrote. “The university spent seven years attempting to achieve its compelling interest using race-neutral holistic review. None of those efforts succeeded.”

Even before Thursday’s ruling, it was pretty clear where the court’s staunch conservatives stood on the matter of race-based admissions policies. During oral arguments on the case last December, the late Justice Antonin Scalia raised eyebrows by suggesting black students might actually fare better in “slower-track” schools.

Justice Samuel Alito, who wrote Thursday’s dissent, argued that the court was sanctioning “racial balancing,” the process of forcing admissions to reflect state demographics, something the High Court has before deemed unconstitutional. He argued at length that policies like UT’s could, for instance, put Asian-American students at a disadvantage, since they make up a tiny portion of UT’s overall student body yet are still overrepresented in the classroom when you consider state demographics.

Alito wrote: "In UT's view, apparently, 'Asian Americans are not worth as much as Hispanics in promoting ‘cross-racial understanding,' breaking down ‘racial stereotypes,' and enabling students to ‘better understand persons of different races.'"

In a prepared statement, Texas Attorney General Ken Paxton decried Thursday’s ruling. “Less than 10 years ago, the Supreme Court said that ‘[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race,’” he said. “Sadly, the Court today has departed from that guiding principle.”

While this seems to finally be the end of the Fisher case, the majority opinion probably leaves the door open to future challenges by saying schools need to continually evaluate the effectiveness of their affirmative action programs.

Kennedy pointed out that UT’s program had only been in effect for three years at the time it was challenged, meaning the school didn’t have time to adequately study its impact on classroom diversity. Per Kennedy: “The University, however, does have a continuing obligation to satisfy the strict scrutiny burden: by periodically reassessing the admission program’s constitutionality, and efficacy, in light of the school’s experience and the data it has gathered since adopting its admissions plan.”